Shri Sat Deo Jain vs M/S. Investment Point
2001 Latest Caselaw 725 Del

ORDER

S.K. Agarwal, J.

1. This is a petition under Article 227 of the Constitution of India read with Section 482 CrPC against the order dated 14th February, 2000 passed by the court of Shri Sanjay Kumar, Metropolitan Magistrate, Delhi dismissing the application of the petitioner u/s 311 Cr.PC for recalling the complainant for the purposes of further cross-examination.

2. Brief facts are that: on the basis of the complaint filed by the respondent u/s 138 Cr.PC petitioner was summoned and is facing trial. The respondent in support of its case examined Mr. Sanjay Bansal, its authorised representative in addition to the bank witnesses. Petitioner cross-examined the authorised representative. Thereafter statement of the petitioner was recorded. He also summoned some of the bank officials. As per the defense of the petitioner the cheque in question was issued on the basis of the statement of account given by the complainant/Respondent which is Ex. PW1/B. It is argued that during defense evidence of the Bank Officials it was revealed that the statement of account Ex PW-1/B was wrongly prepared by the complainant and some of the cheques purported to have been issued and encashed by the petitioner were in fact never encashed by him and that some of the cheques were "Bearer cheques" which were encashed by the complainant or his authorised representative. The petitioner's application for recalling the complaint was dismissed by the trial court observing:-

"..... The Section 311 Cr.PC is enacted not to re-start the trial examination of witness, in case any witnesses remained to be examined....."

3. Trial court appears to have erroneously understood the ambit and scope of Section 311 Cr.PC which is settled by several authoritative pronouncements of the Apex Court. Reference in this regard can be made to the decision of the Supreme Court in Mohanlal Shamji Soni vs. Union of India AIR 1991 SC 1999, which reads:-

"It is therefore clear that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each cases."

(emphasis supplied)

4. Learned counsel for the respondent argued that the petitioner has been deliberately delaying the trial; petitioner on the basis of the statement of account was well within the knowledge of the petitioner right from the very beginning. Therefore, at the time of cross-examination representative of the respondent/complainant, the petitioner should have been summoned relevant bank records and cross-examined on all the aspects of the case.

5. I have considered the rival contentions. Taking into consideration the fact that petitioner came to know that some of the cheques issued were not encashed by the petitioner and were in fact encashed by the complainant/authorised representative would be certainly relevant and material for the decision of the issues involved in the case; trial is still in progress. It would be thus expedient and in the interest of justice that one more opportunity be given to the petitioner to cross-examine the Respondent/complainant's witness on the aspect noticed above.

6. In view of the above impugned order is set aside subject to the payment of cost of Rs.5,000/-. Trial court is directed to provide one opportunity to the petitioner to further cross-examine authorised representative of the respondent/complainant.

7. Petition stands disposed of.